A Call to Thought

Wall Street’s Fearless Girl and Her Contentious Neighbors

Opinions on the Fearless Girl, commissioned in consideration of International Women’s Day 2017, have been aggressively divided. Many applaud the Wall Street newcomer as a symbol of needed gender diversity in traditionally male-dominated markets. We’ll call these enlightened egalitarians Camp I. (Pause for enthusiastic, if largely feminine, applause.)

Others claim the Fearless Girl is a less-than-sincere marketing ploy promoting “gestural” feminism or hollow “corporate” feminism (New York Times). It is by a member of this camp, Camp II, that we have been gifted a shoddily crafted urinating dog. Let’s all offer up a slow clap to Pissing Pug sculptor, Mr. Alex Gardega, for his contribution to this mature, meaningful, and civilized dialogue on both the gender divide and the arts. Or not…

Finally, the artists and craftsmen of Camp III argue simply that the Fearless Girl distorts the meaning of the incumbent Bull statue in a way that infringes on creative rights. Though the legitimacy of this claim ultimately comes down to what the law says, it all seems a little suspect to me. Basically, the Fearless Girl encourages passers-by to consider possible new perspectives on the Bull in assimilation with this new neighboring work. She asks us to consider a need for change in the way we think about Wall Street and its culture, particularly as relates to gender. And we all know how dangerous (and irritating) it is to be asked to think about change.

Note, Bull creator Arturo di Modica gives us his best spread eagle pose, with one foot shoved self-servingly into each of Camps II and III. So let’s explore these groups a little deeper, keeping in mind that, though I like to think my research was evenhanded, my commentary here is intentionally something less than neutral.

Mr. di Modica and the conspiracy theorists of Camp II have decried the Fearless Girl as an “advertising trick” rather than a “symbol” (Marketwatch). This distinction is made in part because of publicity and other miscellaneous (and largely unverified) corporate gains garnered by State Street Global Advisors as the result of marketing materials bearing the Fearless Girl’s image. It is based more wholly on imaginings and prejudgments about State Street’s ultimate intentions in having the statue commissioned.

Ultimately, what Camp II intends so condemningly to purport is that, if State Street gained from supporting women’s advancement or was in any way motivated by those potential gains, the Fearless Girl cannot be a true and honest symbol of gender equality. (Cue the sound of Camp I members’ naïve illusions shattering, but keep reading guys.)

In response to this argument, it is first notable that Bull artist Arturo di Modica, who owns the trademark and copyright to the Charging Bull, has profited from the licensing of his statue as have many city artists and art patrons throughout time. So let’s not pretend State Street is the only group benefiting from their work. And how about this example: the Statue of Liberty.

The Statue of Liberty was, like the Bull, a gift from a foreign-born artist. It also represented a highly diplomatic and political move that generated significant gains for sculptor Frédéric Auguste Bartholdi, builder Gustave Eiffel, and the gifting nation of France. For instance, Bartholdi licensed the image of the Statue of Liberty in 1875 and began collecting proceeds for its use years before the statue was even unveiled (National Park Service).

Nonetheless, the State of Liberty is hugely symbolic. Based on this precedent, financial or publicity-related benefits surrounding the creation and placement of a symbol should not automatically degrade its status or integrity as such.

As for State Street’s true intentions in commissioning the statue, these are impossible to divine and so should not be used to justify overblown rhetoric denouncing the Fearless Girl as a trick or ploy. All that can be truly known is that the statue was placed to coincide with International Women’s Day and that State Street’s publicly stated intention was to advance their continuing campaign for “gender diversity in corporate leadership roles” (State Street Global Advisors).

More interesting than musings on State Street’s potentially profit-oriented intentions (they are a business after all) is the impact and response the Fearless Girl has generated. Support for the work has been strong enough to secure an originally week-long permit for several more months, extending into next year. Given positive support from interest groups, individuals, and city officials, it is impossible to deny that she is, at least to some, a symbol in the purest sense of the word.

At this point outspoken Bull artist Arturo di Modica steps into the ring once again, now as the strongman voice of the livid and litigious Camp III. Here, his two primary arguments against the Fearless Girl are as follows: 1. The Visual Artists Rights Act of 1990 (VARA) provides limited “moral rights” to artists which prevent “prejudicial” alterations to their works – alterations like those resulting from placement of the Fearless Girl in such direct spatial conflict with the Bull. 2. Commercial laws are being violated through State Street’s use of images featuring both the Fearless Girl and the Bull together on their website and various marketing materials. The two questions here are essentially 1. can she be there and 2. can she be photographed for commercial use.

Let’s first reiterate that, to the best of my knowledge, the creators of the Fearless Girl obtained all necessary permits to place the work in its current location. So apparently city officials did not believe placing her there would violate any relevant laws. Or maybe they just didn’t do their research, if we’re giving the bullies (pun intended) the benefit of the doubt.

Regardless, in contrast with the Fearless Girl’s apparently fully legal placement, the Charging Bull was first placed in 1989 with no permission whatsoever and was accordingly removed and relocated. Permissions regarding the placement of the so-called Pissing Pug have not been discussed in any of my sources but I imagine that is because they do not exist.

Next, let’s note that the Fearless Girl was erected on an extended section of cobblestone created specifically to provide a temporary home for the new work (Artsy). The entire cobblestone area is city property managed by the Department of Transportation and is in no way an intrinsic aspect of the Bull statue or inseparable from that work. Appropriately, it was the Department of Transportation that issued the permit for the Fearless Girl to be placed (Artsy).

(Technical side-note: the Pug was placed on the extended section of cobblestone created specifically to house the Fearless Girl. Even more significantly, the Pug was placed in a space which is directly under the Fearless Girl’s left elbow. It could thus be argued the Pug is not simply a neighboring sculpture in the way the Fearless Girl is a neighbor to the Bull. Rather, the Pug infringes on the Fearless Girl’s immediate display space. Significant distinction? You tell me. Either way, without a city permit the Pug’s current placement is essentially a crime in my book. And a tacky one at that.)

But let’s get back to the real legal hinge here: VARA. Ultimately, the protections offered to artists by VARA are little different than those offered an architect who similarly designs a building with the intent to make a statement and to exert his permanent influence on the city landscape. The principle is this: unless you happen to own all the property surrounding your work, there’s little you can do about the neighbors, even if they block your view (or your artistic vision, as the case may be).

Amy Adler, an art law professor at New York University Law School, contributes the following to this debate: “Under moral rights in this country [rights provided by VARA in the U.S.], while you can sue for someone actually physically changing a sculpture, changing a sculpture by placing another sculpture near it is simply not actionable…We don’t want to let artists start suing curators because they don’t like who their work is displayed next to” (Artsy).

Philippa Loengard, deputy director of Columbia Law School’s Kernochan Center for Law, Media, and the Arts, reinforces this interpretation of VARA’s limited rights, adding, “We have never seen a case where a modification [of a work of art] meant a neighboring piece of art… And even if it did, how would that work, anyway?” (Bloomberg BNA).

As regards the Fearless Girl’s presence at Broadway and Morris, these scholars agree the Bull artist and his litigious camp, no matter how livid, have no legal claim. Ah, justice and alliteration – two of my favorite things.

Whether or not State Street’s use of images featuring both the Fearless Girl and the Bull violates commercial or copyright law is a more intricate legal issue than I am prepared to address here. That being said, this question really depends on whether the Bull’s copyright protects it from being photographed for commercial use in general. And if di Modica has declined to sue for past known commercial uses of the image he may be without a leg to stand on. Ultimately, the issue of commercial photographs featuring the Bull without permission is one totally separate from that of the Fearless Girl’s presence nearby.

To again quote Amy Adler of NYU Law School, “All public art is ideally in dialogue with the space it exists in. And that includes other sculptures” (Artsy). Clearly, the Bull was placed in dialogue with Wall Street and the city of New York. That is obvious from the work’s creation as an optimistic commentary on New York stock-market health as has been repeatedly touted by the artist. It seems exclusionary to object to such dialogue only when it poses potential opposition, rather than reinforcement, to the message of the incumbent statue.

That being said, this is not an unregulated dialogue; I am not trying to instigate an art war on the corner of Broadway and Morris. Even though that would be awesome. Rather, there are numerous criteria which must be met in order for an artist and his work to participate in this discussion. Those criteria are set out by the relevant mediator of this visual debate – city officials in NYC – and the Fearless Girl has met them all.

Ultimately, the Fearless Girl is not combatant; she is compliant. Maybe she’s not compliant with you or your ideas about the gender divide or the arts, but let’s get one thing straight: she stands on her corner with city permission, unlike the crass Pug now beside her or even the Bull when originally placed. She is quiet and dignified. She waited her turn and waded through the red tape much like the women she represents. So let her say her piece.